Legal Reductionism and Freedom

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Springer Science & Business Media, Nov 30, 2001 - Business & Economics - 204 pages
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Martin van Hees presents a new approach to the study of law - legal reductionism - which combines elements of legal positivism, new institutionalism and decision theory. From legal positivism Van Hees derives some fundamental insights into the nature of legal systems, but he also revises some of its key tenets. He argues that law can be reduced to facts; moreover, he re-establishes the relation between law and morality by arguing that law and positive morality are inherently related. He subsequently uses decision-theoretic tools to develop and defend his reductionist methodology.
The second part of the study applies the resulting approach to an analysis of legal freedom. By showing that legal reductionism allows us to analyse the value of liberal legal systems, Van Hees makes a forceful case for including the study of law in moral and political philosophy.
The book is accessible to a wide readership, including legal and moral philosophers, political theorists and social scientists.
 

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Contents

Legal Positivism and the Normativity Thesis
9
Legal Positivism and the Separability Thesis
27
Reductionism and the Analysis of Institutions
45
Legal Systems Rights and the LegalPolitical Game
61
The Analysis of Legal Freedom
85
Concept and Contents
87
Conceptions of Freedom and the Triadic Structure
89
The Agents
90
Carters Measure of Empirical Freedom
126
Strategies and Opportunity Sets
135
A Measure of Legal Freedom and Some Problems
136
Strong Monotonicity and Dominance
140
Dominance and Equality
145
Maximal Legal Freedom
147
The Value of Legal Freedom
151
Freedoms Specific Value in Parametric Situations
158

The Constraints
93
The Objectives
96
Prevention and Intervention
98
Freedom of Choice
105
The Simple Counting Rule
106
The Introduction of Preferences
108
Freedom and Preferences
112
Similarity and Dissimilarity
116
Monotonicity and Technological Changes
121
Conditions of Legal Freedom
125
Reasonable Preferences and Overall Specific Value
161
The Possible Disvalue of Legal Freedom
164
Being Free to Stay Passive
166
Freedoms Specific Value in Strategic Situations
170
Stability Efficiency and the NonSpecific Value of Legal Freedom
172
LegalPolitical Games
177
References
179
Index
185
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